2012-JUL to 2012-OCT: The State Appellate Division
Court and the Court of Appeals both reject lawsuit.
New Yorkers for Constitutional Freedoms changes attack.

2012-JUL-06: Lawsuit rejected by Appellate Division court:

The Fourth Department of the Appellate Division, a state appeals court in Rochester, NY, unanimously rejected a challenge to New York state's SSM law that was passed in mid-2011. 1 By a 5 to 0 vote, the court ruled that closed-door negotiations that included both Republican senators, Governor Andrew Cuomo (D), and other SSM supporters did not violate any laws.

In response to the ruling, Governor Cuomo said:

"The court's decision affirms that in our state, there is marriage equality for all, and with this decision New York continues to stand as a progressive leader for the nation."

Attorney General Eric Schneiderman, referred to the decision as: "a great victory for marriage equality."

The court's ruling stated, in part:

"In the event that we were to adopt plaintiffs' limited definition of `guests,' it would be impossible for a Democratic member of a governor's office, such as a budget director, to speak to a majority Republican caucus."

This type of meeting is a regular occurrence.

Mathew Staver heads Liberty Counsel which provided legal support for the plaintiffs -- New Yorkers for Constitutional Freedoms (NYFCF). The latter is a group whose main function is to remove freedoms from sexual minorities and individuals who gamble. They expected to appeal the ruling. Staver said:

"It's a disappointment, because this gives a green light to the politicians to (use) strong arm tactics behind closed doors and shut out the people from the process." 2

Rev. Jason J. McGuire, the Executive Director of NYFCF said:

"Clearly I am disappointed by the decision from the Appellate Division, but if there is one thing I have learned it is that there is a certain ebb and flow to the various levels of court actions.

The truth is even liberal-leaning good government groups have had to admit that the process by which same-sex ‘marriage’ became law was a bad one. If we can’t trust elected leaders to play by the rules when they seek to pass legislation, then anything can pass against the will of the people – whether it be same-sex ‘marriage’ or a national health care initiative.

I will sit down with Rena Lindevaldsen and the rest of our attorneys at the Liberty Counsel, review the Appellate Division decision and weigh our legal options moving forward. The integrity of our legislative process is at stake – and it is worth defending." 3

With his comment about the "will of the people" on SSM, Rev. McGuire was apparently ignoring of the level of public support for SSM in New York State. A state-wide poll in 2011 shortly before the bill became law found 55% of the public supported SSM while 36% opposed it; 9% did not answer or had no opinion. That is a margin in favor of SSM of 19 percentage points. These results were similar to various national polls taken during 2011 -- the first year that national polls indicated a majority of American adults supported SSM. Since support for SSM has been increasing by 1 or 2 percentage points per year, and opposition has been dropping by about the same value, the margin is probably two to four percentage points higher by the fall of 2012 when the court issued its ruling.

NYFCF has a policy of enclosing the word marriage in quotation marks when it refers to marriage by a loving, committed same-sex couple. It is their way of denigrating such marriages and is a notation widely used among conservative groups. However, some groups have recently begun to use the term "so-called same-sex marriage" instead.

Liberty Counsel and New Yorkers for Constitutional Freedoms did decide to appeal the lawsuit, even though the chances of them winning were very slim. Denying the option of marriage to the very large population of LGBs in New York State is simply too tempting a prize for them to ignore.

2012-OCT-23: Court of Appeals refuses to hear appeal:

The Court of Appeals, New York State's highest court, refused to hear the challenge to the 2011 SSM law. As is normal for the court, they did not explain the reasons for their decision.

Governor Andrew Cuomo responded:

"Today, the New York State Court of Appeals, the highest court in the State, denied leave to appeal the validity of the Marriage Equality Act, which affords same-sex couples in this State the right to marry. New York State has served as a beacon for progressive ideals and this statute is a clear reminder of what this State stands for: equality and justice for all. With the Court’s decision, same-sex couples no longer have to worry that their right to marry could be legally challenged in this State. The freedom to marry in this State is secure for generations to come." 4

That seems like a strange prediction. Previous redefinitions of marriage that made marriage available to additional groups of American couples have lasted more than "generations to come." Rather, they have been permanent. These include:

In the mid 19th century when African Americans were allowed to marry throughout the U.S.

In the very early 20th century when deaf couples were allowed to marry in every state.

In 1967 when the U.S. Supreme Court declared all miscegenation laws unconstitutional and allowed all interracial couples to marry.

With a strong majority of New York adults in favor of same-sex marriages the only obvious way to roll the clock back on SSMs would be for the federal Constitution to be amended to prohibit SSMs across the entire country. This amendment is part of the Republican Party's platform for 2012.

Attorney General Eric Schneiderman said:

"Today another barrier has been overcome in the struggle for full equality for gay and lesbian New Yorkers. The New York State Court of Appeals sided with my office in a rejecting a challenge to the Marriage Equality Act. With this ruling by our state’s highest court, same sex couples can now have peace of mind that this legal challenge to their marriages has been laid to rest. The struggle to secure federal recognition of all New York marriages continues, but today’s decision is an important victory for equal justice. My office will keep fighting every day to defend the fundamental guarantee of equal protection of the law for all New Yorkers." 4

Nathan Schaefer, Executive Director of the state Pride Agenda -- a LGBT positive group -- said:

"This sensible decision was the only reasonable response to such a frivolous lawsuit and affirms yet again that marriage equality is the law of the land in New York State. New Yorkers and their legislators proved that they were moving with the tide of progress when [the] marriage [bill] passed over a year ago.

“They’ll throw anything at this law just to see if something sticks. Nothing will. Nothing can stop the momentum for full equality that started right here in New York State." 4

"We’re disappointed, but not surprised, by today’s decision. Every time the people of a state have had opportunity to vote on this issue, they have rejected same-sex 'marriage', but when rogue legislators and activist courts get involved they reject the will of the people."

Essentially this was a case that didn’t look at the morality of gay 'marriage', but the legality of the process and procedure by which it became law. What is most troubling is that the court has surrendered its rightful role as a check and balance on an out-of-control Legislature. It is the last defense against legislators that simply pursue political aspirations, rather than the interests of the people they were elected to represent. This was simply put not good government.”

With two weeks to the General Election, voters will have their say. They’ve already spoken up in various districts including the 43rd Senate District where Senator Roy McDonald lost his seat after voting for gay 'marriage'. The drumbeat is only growing louder." 4

Senator McDonald (R) may well have lost his bid to be the Republican candidate in his district because most Republicans oppose marriage equality and Senator McDonald voted in favor of the bill.

Future plans for New Yorkers for Constitutional Freedoms:

Rev. McGuire acknowledged that the lawsuit is now over. He apparently now expects that his groups will continue to fight against marriage equality in two new areas:

Obtaining approval for a future citizens' initiative in which the public would be asked to vote to repeal the SSM law.

Addressing future conflicts over discrimination against individual same-sex couples. The law allows religious institutions exemption from human rights legislation. They can freely discriminate against loving, committed same-sex couples by refusing to conduct their marriage ceremonies. However, this immunity does not extend to businesses and individuals that are associated with weddings -- like wedding photographers, wedding cake bakers, owners of halls rented to the public for wedding receptions, etc. McGuire refers to these conflicts as involving individuals' constitutional rights to freedom of religion. 5 He said:

"I think now this step opens up the religious freedoms issues. We now have a state law that says you have religious freedoms only within the four walls of your church, mosque or synagogue." 7

With no clause in the SSM law to give protections against individuals and businesses that want to refuse to supply services to engaged same-sex couples, the former are vulnerable to human rights complaints because of the state's anti-discrimination laws. 5

There have been two recent human rights complaints filed in the state:

During 2012-SEP, a gay couple in New York City filed a human rights complaint against a local restaurant. They allege that the restaurant manager cancelled their wedding rehearsal dinner and refused to cater their wedding saying that he did not want any "gay parties." The restaurant disputes the claim.

A couple from upstate New York recently approached the owners of Liberty Ridge Farm near Albany. The farm apparently rents its facilities out to the general public for wedding services. Owners Robert and Cynthia Gifford allegedly refused to rent the farm as a wedding venue because of their values and religious background call for them to discriminate against same-sex couples. The loving, committed couple who wanted to be married there consists of two women; they filed a complaint in October.

Rev. McGuire also expects that lawsuits attempting to declare the same-sex marriage law in violation of the state and/or federal Constitution:

"... will begin to crop up.
We are disappointed. Essentially we now have a court that says that they are going to not serve their proper role of a check and balance on a Legislature that has gone rogue. That’s a concern." 6

References used:

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